The State v Maxwell Sibanda and The State v Misheck Magosvongwe

Two separate culpable homicide cases arising from road traffic accidents were dealt with together on review. In the first case, Maxwell Sibanda was driving a Mitsubishi Colt pick-up truck on 9 October 2014 along the Masvingo-Mbalabala road when he unlawfully and negligently drove his vehicle, causing it to swerve off the road and hit Michael Maphosa, a two-year-old child attempting to cross the road. The child sustained head injuries and died on the spot. In the second case, Misheck Magosvongwe was driving a Toyota Corolla on 23 October 2014 along the Mbalabala-Masvingo road when he unlawfully and negligently drove his vehicle, resulting in the death of Tsvakai Moyo, a pedestrian crossing the road. Both accused pleaded guilty before the Filabusi Magistrate's Court. Both were holders of class 4 and 5 driver's licences with no relevant previous convictions. The magistrate sentenced both accused to pay a fine of $400 or in default four months imprisonment, but failed to impose prohibition from driving as required by section 64 of the Road Traffic Act.

• Whether the trial magistrate erred in failing to enquire whether the accused persons held driver's licences
• Whether the trial magistrate erred in failing to impose prohibition from driving upon conviction for culpable homicide arising from a road traffic accident
• Whether section 64(3) of the Road Traffic Act [Chapter 13:11] imposes a mandatory requirement to prohibit convicted persons from driving following conviction for culpable homicide arising from motor vehicle use
• The proper application of sentencing provisions under the Road Traffic Act in cases of culpable homicide arising from negligent driving

The matters were remitted to the Filabusi Magistrate's Court with an order directing that both accused persons be recalled for the court to impose prohibition from driving in terms of section 64(3)(i) of the Road Traffic Act [Chapter 13:11].

Upon conviction for culpable homicide arising from the negligent or unlawful driving of a motor vehicle, section 64(3)(i) of the Road Traffic Act [Chapter 13:11] places a mandatory requirement on the court to prohibit the convicted person from driving for a specified period. This is not a discretionary matter. Where a person is convicted of murder, culpable homicide, assault or similar offence by or in connection with the driving of a motor vehicle, and the court considers that the person would have been convicted of an offence under the Road Traffic Act involving driving if charged under that Act instead, the court must impose a prohibition from driving that is no shorter than would have been ordered under the Road Traffic Act, and must cancel the licence if that would have been required under the Act.

The court observed that it had become common practice for prosecution to charge an accused with not having a driver's licence if applicable, and therefore the court could imply that an accused had a licence if not so charged. However, the court emphasized that proper enquiry should still be made. The court also noted that contributory negligence by victims (such as a child's caregiver not monitoring the child's movements near a highway, or a pedestrian crossing from behind a truck) may be relevant to the overall assessment but does not absolve the driver of criminal responsibility or remove the mandatory requirement to impose driving prohibition. The court expressed concern that despite numerous previous judgments on this issue, magistrates continued to misapply the law in this area.

This case reinforces the mandatory nature of section 64(3) of the Road Traffic Act in Zimbabwe, which requires courts to impose prohibition from driving (and potentially cancel licences) when convicting persons of common law offences such as culpable homicide arising from the negligent driving of motor vehicles. The judgment emphasizes that this is not a discretionary matter, despite continued misapplication by magistrates. It serves as an important reminder to lower courts about the automatic application of Road Traffic Act provisions in traffic-related culpable homicide cases, and that contributory negligence by victims does not absolve the court of its statutory obligation to impose driving prohibitions. The case forms part of a line of Zimbabwean authorities addressing persistent errors in sentencing for traffic-related culpable homicide.